Posted
by
kdawson
on Saturday August 18, 2007 @12:17AM
from the cutting-more-legs-out dept.

NewYorkCountryLawyer writes "The RIAA's argument that merely 'making files available' is in and of itself a copyright infringement, argued in January in Elektra v. Barker (awaiting decision), is raging again, this time in a White Plains, New York, court in Warner v. Cassin. Ms. Cassin moved to dismiss the complaint; the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3). Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the Internet. The case is scheduled for a conference on September 14th, at 10 AM (PDF), at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The conference is open to the public."

"However at no time is the sharing of material, which has a copyright notice on it clearly denying you permission to share, legal."
Not necessarily. Think two people who each own the CD sharing a ripped copy because one is too stupid to rip their own and wants it on their ipod. Obviously I'm stretching things and that's not what's going on with P2P, but still, its theoretically possible for sharing to not violate copyright.

your right, that's a pretty BIG stretch, so my logic still stands i think. If that was the case and you could show you actually owned a purchased copy of ALL the mp3's on your hard drive the RIAA probably would bail out on the legal proceedings. they aren't nearly as stupid as you think

I wonder if a disclaimer to the effect that you must own a copy of said recordings to download them would hold up

I don't think you've been keeping track. They're even more stupid than I think. Anyone who hires counsel who intimidate and threaten witnesses into giving false testimony, or who starts a p2p lawsuit against people who don't own a computer is actually falls outside my ability to conceptualise their stupidity.

What you're not getting is that with law, non-criminal law, it doesn't have to be beyond a reasonable doubt. Especially when we're talking about something like this. This isn't even about evidence, but about interpreting law.

I wonder if a disclaimer to the effect that you must own a copy of said recordings to download them would hold up

Distribution is an exclusive right of the copyright holder. Distribution to someone who already has a copy is still distribution, and their possession of a copy or not has no relevance on that. Nobody's contesting that illegal distribution happens when an illegal copy is made. The only two arguments have been 1) sharing does not imply that anyone actually copied it, so it doesn't implicate infringement and 2) distribution happens at the client's request, thus the client is liable not the sharer. That disclaimer would have just as much effect as the Internet Privacy Act [snopes.com].

I hadn't considered this previously, but since distribution is the copyright holders right and no one else's, does that make the resale of CD's a civil (or even criminal) offence? After all its distribution. The answer is no (I'm sure the record companies would prefer it otherwise) but I am unclear as to why that is, and how that principal (which clearly violates the rights of the copyright owner in fact if not in spirit) can be applied to downloading music, films or books you already own a copy of.Any th

I hadn't considered this previously, but since distribution is the copyright holders right and no one else's, does that make the resale of CD's a civil (or even criminal) offence? After all its distribution. The answer is no (I'm sure the record companies would prefer it otherwise) but I am unclear as to why that is, and how that principal (which clearly violates the rights of the copyright owner in fact if not in spirit) can be applied to downloading music, films or books you already own a copy of.

(a) Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

I don't think anyone has successfully used that defense, I'd love to see a case file. US law is extremely fuzzy on the subject (it'd have to go under fair use) but pretty much every country that's made it explicit has made it clear that fair use copies must come from your own copy (or legitimately recieved broadcast in case of TV/radio). So the courts might actually rule that you are entitled to rip your own CD but not to copy Bob's rip, even though the result is identical. Certainly if Bob's CD is pirated

I've wondered. Suppose they actually managed to come up with workable DRM. Then suppose some person with megabucks buys one copy each of many songs or CDs, and opens an online music library - you "borrow" the song for a set period of time after which the file expires. It's only available to be "borrowed" by one person at a time, or anyway each paid copy is. When your copy expires, it becomes available on the site for someone else to "borrow."

Your comment displays a fundamental ignorance of copyright law in the United States.One person copying a song to MP3 format and giving it to someone who owns a CD that already has that song is illegal. You have infringed on the copyright owner's exclusive right to reproduce the copyrighted work in copies or phonorecords (unless you've received special permission because the author released it under the GPL, creative commons, or licensed you specifically).

Oh, I see: Since I *might* use my car as a getaway vehicle, and perhaps even parked near the bank, that means I ought to be arrested for bank robbery, even tho I've never robbed a bank.Per TFA... it refers to mere *possession of a shared folder* that is internet-accessable (per my analogy, possession of a car with a full gas tank) as an infringing act -- even if at no time were any files shared (at no time were any banks robbed).

I'm not promoting copyright infringement, but this "MIGHT be shared" qualifica

well, that's a different kettle of fish right there - if they can't show you were sharing anything, then your not a party to any kind of crime.

To be shown guilty the RIAA would need to prove they could download the files from you without breaking the law themselfs.
My point was that there is no situation where sharing infringing files can be legal. your car in front of the bank might not be used for a robbery, so of course you shouldn't be arrested (thank you captain obvious).

Well, I thought that was the point -- that the files were *available* to be infringed, but there wasn't any evidence that they actually *had* been infringed; therefore why is just having the files "parked" an infringement?

Just cuz I parked in front of the bank doesn't mean the bank got robbed!

The problem is how do they know that they own the copyright to the files.

I have a mp3 file in my shared folder called rehab.mp3. This file is a copyrighted audio recording of my friend talking about rehab. RIAA using false pretext (and possibly violating the terms of use of the network) download this song. They check it and realize it is not the file they thought.

Ripping a CD, making a seed, and uploading said files to a server on the net implies more than just a "little" intent, don't you think? You're not just "thinking" of doing it, but have actually taken the steps needed to commit the act.

Or to continue your rather flawed analogy: you've just exited your idling car and are about to enter the bank, masked and gun in hand. True, you haven't robbed the bank yet... but I doubt that a passing police officer is going to stand around and wait until you actually do so.

In the United States, you have every right [cornell.edu] to get together with friends and make copies of music on analog tape, or digital copies of music using digital audio recording equipment. This is per the Audio Home Recording Act of 1992 [wikipedia.org].

I'm not sure what this means about copying a CD someone else bought to a tape, but copying a CD for a friend using digital audio equipment and audio cds is perfectly legal, and copying an audio tape to another audio tape is also legal. We pay a "tax" to the RIAA on every piece of digital audio equipment, audio CD, and audio tape to allow this.

In the USA it is legal to make personal copies of copyrighted works. There is even less doubts about the legality of torrents due to the simple fact that a torrent is not the copyrighted work but simply a pointer to that copyrighted work. Can you please explain to everyone interested where in the world is it illegal to offer directions to a copyrighted work?

Are you sure?What if I tell you that that word 31552 in the new Harry Potter book is "below"? I've just shared material that is clearly copyrighted, have I infringed the copyright? What if I expand this out to a whole sentence - quoting passages is considered fair use. I've shared copyrighted material but there has been no infringement. It's easy to see that 20000 of us could each quote a single sentence in the book, if you reassemble all the quotes together then you could reconstruct the entire book.

I no more have the 'right' to freely copy the game 'bioshock' without paying for it, than I do to go into my local store and take whatever food I want.

With respect, that's not a fair comparison. If you take food from your store you're depriving other people of it. The comparison would hold if you could be satisfied by merely looking at food, and you strolled through the 7-11 without buying anything when you were hungry. You would be satisfied and the store would not have lost stock, but the producer would n

That's both morally and legally wrong, unless you are a communist and believe in such things.

So, communism is immoral? As long as I "believe in such things" it's OK to steal? Are you a moron?

Cliffski, seriously, one of the definitions of "stealing" is "taking someone else's property". I don't happen to believe that copying a CD is taking someone's property, because the owner still has it. That's your own description isn't it?

Now the question is "who has the permission of who created it originally"? And what does "permission" mean in this case. I just copied the library's lovely recording of Georg Solti's performance of the opera Parsifal. Richard Wagner created Parsifal originally, and he's not around to give any permission, and I guarantee that he didn't give the Sony Conglomerate permission to make money off of his work.

The library still has their 4-CD set and I've got the music on my mp3 player.

The entire system of "intellectual property" is based on a fantasy designed to make people who have never created anything a way to get rich. As someone who "believes in such things", I say "fuck them". Let 'em work for a living like the rest of us.

That's both morally and legally wrong, unless you are a communist and believe in such things.

Do you even know what you are talking about?

Copyright,is talking about a right. Something may take a tremendous amount of effort to orginally create. Learning how to mix iron with coke to create steel. Or writing "War and Peace". Or writing a piano sonotta. Or telling a joke. But it is the very nature of things, that once something is made, it can be copied. Maybe it is human nature. Once someone figured out how

One draws the line where the money is no longer available. Gun dealers are not held accountable for the crimes of their clients because the NRA is a huge lobby with plenty of the money. Auto dealers and manufacturers are not held accountable because again they're huge lobbyists with lots of money. Do you know who does get held accountable? Bars that overserver people and then let them drive drunk. Why? Because the restaurant industry is too fragmented to effectively lobby

just seems a rather stupid argument that "enabling" a crime is a crime in and of itself. christ I could stab someone to death with a sharpened candy cane given to me by some kid, should the kid be arrested for making it into a point?

Um, what if the kid handed it to you randomly and you just happened to stab to death the first person you saw?And also, what law is having an open share breaking? is it also illegal to not lock your doors in the states?

Last i checked it was the process of COPYING the IP that you do not have a license for that is illegal in the US. If you copy an MP3 from someone that is identical in every way to an mp3 you paid for using an online service, I'm pretty sure that would be entirely legal, let alone making it av

So my torrent seed of Ubuntu (which is comprised almost entirely of copyrighted material) is illegal?That is the claim you have made.

I could say "It's illegal to enter someone's house and eat their food." to which you could reply "So eating the dinner my friend cooked for me last night at his house was a crime?" and it'd make just as little sense because then you have the owner's permission, just like with Ubuntu you have the copyright holders' permission. Distributing copyrighted material is illegal, that'

The general statement of saying "enabling someone else to commit a crime is a crime itself" is just nonsense.

With that general statement you could in theory hold a man who drove drunk and killed someone accountable, the manufacturer of the automobile, the designers of the automobile, the assembly line workers(if any) that put the car together, the store or individual who sold that man the liquor all accountable. Because you know, all of those in "theory" enabled that man to drive the automobile while intoxicated. Hell, why not involve the local government for putting those damn roads in that enabled that man to drive his automobile around.

The thing that I find most disturbing is that they're not trying to get them for sharing, it's for making it available. Why didn't the RIAA get a copy of the song they were making available and then charge them for distributing? If they're going to go by filename alone, then I've got a whole bunch of pictures of faith hill, shania twain, and Melinda Gates that they ought to take a look at.

In New York State, it is illegal to serve alcohol to someone who is obviously intoxicated. I think it's the same thing you just mentioned, and they could theoretically lose their license to sell alcohol over it.

You're actually not too far off target. People who serve alcohol to visibly intoxicated people that later causes accidents are liable for those accidents. These laws are called Dram Shop laws [wikipedia.org] and are perfectly constitutional.

Hell, it would seem to make rentals and sales of CDs and probably DVDs illegal too since they are so easily copied. After all there is no difference in the end result between selling, renting or lending you a CD which you make a bunch of copies of and freely lending or giving you a CD which you make a bunch of copies of.

How precisely do you equate making the file available with performance of the piece. Displaying an encoded file is a lot different from broadcasting the actual content of that file.To me, that is more associated with the act of copying and outputting the file from its digital form to the "content" form.

Now, if this case ends up in the courts upholding the RIAAs interpretation of performance, which parallels what you're saying, only THEN will that truely be what the law means.

Do you think you wouldn't be breaking an NDA if you published confidential PDFs on a website absent proof that anyone downloaded? Would you think that your right to privacy was violated if someone posted your home address, social security number, mother's maiden name, and date of birth in a file even though there was no proof it was downloaded either?

Do you realize just how insanely great it would be for corps if trade secrets covered by NDA's had copyright protection too? And what a major boon for personal privacy if all those personal facts were subject to copyright law. Too bad it doesn't work that way, eh?

Ask yourself why people use P2P and not webservers. If they aren't breaking the law they should be happy to post these files on their home pages next to their names and email addresses, right?

Because most people cant figure out how to put a 5MB file, or really a file of any size, on a webserver, but they can download and install napster/edonkey/utorrent/etc with minimal hassle?

well lets just put it this way.The way i would see it as a judge, a file is not a performance nor display, a filename is not a performance nor display, a digitally encoded file is not a performance nor display.

A work is only displayed or performed when said file is converted to the audible or visible form, which requires a player not just the file in question.

Since the file on its own bears no relation to the work without a player, why would the supplier of the file be considered in breach of crap all when

I believe they are correct here - enabling someone else to commit a crime is a crime in itself. And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.

Okay, then where is KaZaZ in this suit? And Microsoft? And Dell? And the ISP she subscribed to? Everyone of them enabled her -- or somebody -- to commit this crime. Why aren't all of them part of this, and every other case?

Actually, the most retarded comment posted here was your original one, which said that enabling someone to commit a crime is a crime. You made a blanket statement right there, which is why everyone is (rightly) tearing into you. You can perfectly accidentally enable someone to commit a crime, so if that were a crime, there'd be a lot of criminals around.

Now it's true that distributing copyrighted material without the permission of the copyright holder is a crime (note the key distinction between what I sa

If no one has downloaded the file, how does the RIAA know that it's copyrighted music? Maybe it's a parody. Maybe it's an original work that just happens to share a name with some other song. Happens all the time. Maybe it's some horrible person renaming files to gain the maximum number of downloads, and it's actually goatse.jpg. Once the RIAA downloads the file itself, then the file has been shared, and if you were not a legitimate distributor of the file in question, lawsuits can occur. Anything els

Is the entire basis of the RIAA claims in all of these cases striking anyone else as being entirely based on "it may have been" scenarios being used as proof?

I think that all corporations which sue individuals should have to adhere to criminal court standards instead of needing just a "whiff" of possibility. Individual vs. Individual of course would still be run as a Civil matter. They should be required to obtain warrants if they want a "Discovery" into any non-public records of the individual. IMHO, they should absolutely NOT be able to get any records from any organization whatsoever about an individual without a warrant (consider ISP's releasing IP address / account information to a corporation for a shady example).

This is why I think copyright infringement should be up to the courts to investigate and prove or disprove as a criminal matter and NOT the plaintiff (corporations).

There seems to be a serious disadvantage for an individual in almost ALL cases involving a company suing an individual (specifically the depth of their pocket books and ability to pay a lawyer).

Thanks for your efforts NewYorkCountryLawyer

- Toast

Much of this post may be conjecture, ranting, etc. I apologize if I got OT, but I would like clarification if any of my views are out of whack, and I wouldn't mind alternate viewpoints so long as they aren't in troll fashion.

P.S. To all grammar Nazi's; I don't really care if I missed anything when I glanced over this post. Don't waste your breath or potentially cause yourself carpal-tunnel by trying to fix it.

"This is why I think copyright infringement should be up to the courts to investigate and prove or disprove as a criminal matter and NOT the plaintiff (corporations)."Copyright becoming a criminal matter would be absolutely disastrous. You can be sure the RIAA and MPAA would be writing and purchasing the laws, and they'd probably even push for federal laws, where due process is largely absent.

Do you really want a country where someone's entire life can be destroyed, with jail sentences and a criminal record

Perhaps the safest way out of the dilemma might be the simple adjustment of P2P file 'sharing' clients to allow only one person at a time to 'play' any particular file stored on the shared file folder. As only one person is using the file and that person using the file is honour bound not to record that file for later use unless they have permission to do so, that file is no longer being made available for copying. Obviously bits in transit or in cache are not a copy otherwise electrical pulses in transit f

As long as we're wishing, I'll go one better. The corporations should be forced to pay upfront for the plaintiff's defense if he can't afford a good one. If the corp wins, they win the court costs too. That way people can't be intimidated into folding even when they haven't done anything wrong.

I like this idea! And while we are at it, they have to match expenditures with the defendant's legal defence (I.E. both sides are allowed a maximum amount of legal funds on a scale which goes according to the damages being sought.)

I'm not an American but why aren't you out there lobbying for just such a change to the US legal system? You are pretty much preaching to the converted by telling fellow/.ers about it. The problem, from my half blind observation point thousands of miles away, is that there is very little chance of anyone being able to persuade those who have the power to change the system to do so. RIAA is simply taking advantage of this fact. Of course I hate what they are doing but within the legal system that they a

A corporation is a legal entity just like any citizen. Under your idea, if they sue someone, they have to pay all the court costs up front. (I assume you're including lawyer's fees in this as well.) So if someone sues the corporation, they then have to be rich enough to cover all the court costs themselves.No, that doesn't work.

I can already hear you saying 'just corporations'... So what about the small ones? It would mean the small companies would be unable to defend their rights, unless they could fi

I can see the exploit in that already. Corp says 'okay, I've got $500' and you get $250. Then the day of the court, they say 'oh wait, we hired a new lawyer. Now it's $1,000,000.' Good luck finding your lawyer on the day of the court case.But wait, there's more! Corp X says 'I have $50,000' and you get $25k for court fees up front... You spend them, then have NO money. How are they to get their fees back? People would be suing corporations just to have a party on the money using scam lawyers. (If y

Offers a good explanation, but basically, they're asking for _your_ argument. This means, if you have a good, coherent, laid out argument for exactly why "making available" does or does not constitute infringement you may be able to influence the decision of the judge. That's right, despite just how bad we (Americans) think w

This kind of thing highlights the fact that so many of these cases may be implemented with improper defense strategy.

The defendants are vaguely accused and therefore are stripped of the capability to offer a real defense. How many of these cases get dragged into technical arguments about the merits of the case instead of real defenses regarding whether or not the law was actually broken.

For instance - you say that there is "ongoing copyright infringement..." did you try to successfully download a copy of the song today? If it's not currently available, there is not ongoing infringement.

Let's take a look at the royalty checks given to the artists in the 2 years prior to the alleged infringement, the year during, and the year after. Do they indicate the possibility of infringement?

Did the plaintiff actually make any effort to do anything to stop this infringement?

Is there any proof that anybody illegally downloaded the songs from the defendant's computers?

How many downloads of the songs were made? How many people had them available? Is there a possibility that the song was made available for download, but never actually downloaded?

Did the defendant promote his shared songs to the public at large?

If there is a defined date for the alleged infringement or a date range, you can offer proof that it was not possible for the infringement to have occurred during that time frame (i.e. on vacation with computer during that time frame, power outage during the time frame in the local area, computer never on long enough during the time frame for a download to occur. Computer in the repair shop during that time frame, etc.)

We all know the suits are based on flimsy technical merits. OK... so moving forward past the technical aspects - is there reasonable suspicion that infringement did occur within a defined time frame?

The time frame is key to actually being able to defend yourself. Having a defined time frame to work with could save the courts, the plaintiffs, and the defendants plenty of time and energy because the technical merits may not need to be argued if a defense other than "this is a bunch of horsecrap and here is why" is available.

My cell phone carrier has a service that can identify virtually any song [shoprogers.com] from a 15 second sample transmitted through the cell phone.

It's not like any specific part is needed here -- All the RIAA needs to do is request a small portion of the file (say, 15 seconds worth -- Trivial to determine if you pull the headers first, not much harder if you pull the middle of an MP3)

you are innocent until proven guilty. In order to convict someone of unauthorized distribution of copyrighted content, the RIAA must prove that a distribution of their copyright owners' intellectual property(IP) did in fact occur. To this day, the RIAA has failed to charge anyone, who has made their copyright owners' IP available for download, with unauthorized distribution of copyrighted content due to the mere lack of evidence. To further complicate the matter, the RIAA has been known to download a copy o

"innocent until proven guilty" applies to criminal trials, where the state presents the evidence. Civil cases, where an individual or company sues another have a different burden of proof - the preponderance of evidence. It's based on which party is most likely to be correct in their interpretation of the facts than proof beyond all reasonable doubt.That said, that the music company being represented by the RIAA has to demonstrate that infringement actually occurred is a fair point, which is an avenue being

you are innocent until proven guilty.the RIAA has failed to charge anyone

If you can't make the most elementary distinctions between civil and criminal law then anything you say about the law is worthless.

All the rights agencies have to do as a plaintiff in a civil case is to persuade the finder of fact that it is reasonable to believe that you infringed on the copyright of one of its members. Nothing more than that.

In order to show that an individual has committed unauthorized distribution of copyrighted content, the RIAA would have to catch the individual in the act of transferring the copyrighted content to another individual who has not been authorized, by fair use or otherwise, to obtain a copy of the IP

This is like saying you can't take the pirate broadcaster into court because you don't know and can't know who - if anyone - was listening to his station. Judges and juries don't think this way.
It is precisely the reckless and indiscriminate nature of distribution through the P2P nets that destroys any defense of "fair use."

From p. 7-8 of 25 of
Defendant's Reply Memorandum of Law in Support of Motion to Dismiss
Complaint [ilrweb.com], referring to
17 USC 106(3): "distribution...to the public" [See, e.g., 2 Nimmer on
Copyright 8.11[A], at 81-148. "[I]t is not any distribution of copies
or phonorecords that falls within this right, but only such
distributions as are made available 'to the public'...[A] limited
publication, i.e., a distribution made to a limited group for a limited
purpose and not made to the public at large, should not infringe this
right."

This is very interesting. Independent of the RIAA case, it seems
to open a whole can of worms for copyright holders generally.

Another (hypothetical) example: internally distributing copies of
Microsoft Office to employees is certainly making them available to a limited group
and not to the public at large. What is the catch? The EULA wouldn't
seem to apply since it is only agreed to after the program is run, not
when it is distributed before ever running it.

I have some songs on my HD. Ok. I may have bought them, or ripped them (which is still legal in some countries), or whatever other means there are to get them legally and on a HD.

Now, I'm a computer moron and have no idea what I'm doing. They are being shared through Windows' own system of making files available, SMB. They are incidentally "available" because they reside in a subfolder of "my folder", which is trivial to "share" in the network. Maybe there was even a good reason to do that for me, because there are other files in there, too, which I may share and I couldn't figure out how to share only those files and not the ones copyrighted.

"Making available"? When you go by the logic usually applied to carelessness concerning computers (i.e. "You're not liable for anything dumb you do with your computer when you're too stupid to know it"), it's not. Still, the difference to "making available" on a P2P network is a matter of protocol, it's not something different in a legal or factual sense. Sharing those files on P2P instead of SMB only means that a different application is responsible for the "making available" part, the rest is essentially the same. I grant access to the files to parties who I'm not allowed to share those files with.

What about trojans? Imagine I had a "P2P trojan" (and, bluntly, I'm surprised that something like this doesn't exist yet in wide spread). Said trojan would act as a relay for people who want to share certain content. Am I making it available? More important, is this suddenly the first trojan whose actions are blamed on the person infected by it?

What about insecure FTP servers? There are literally thousands if not millions of machines on the net that run a copy of some Windows Server version with IIS enabled that allow anonymous up- and download. I checked it once, it usually takes about 10 minutes before you become the drop point for someone who needs to spread files. Again the question, are you liable for it? Yes, common sense says you should be, but generally the creed stands that, if you're too stupid to know, you are off the hook.

So what is "making available"? Where is that line between "too dumb to know that you're sharing" and "knowing what you're doing and thus being liable"?

Isnt that still "making available" a recording under the same premise? The fact that I have a right to own a copy or them to sell a copy doesnt change the fact that others can copy the recordings if either of us make them "available" to others via a public channel. Selling a CD that is going to be played to an audience and possibly be played on a CDburner combo drive has effectively made the recording digitally available as if it had been put on a torrent.

That plays right in with the "how much effort do you have to take to secure your network before you aren't liable for misuse" talk. There are quite a few windows machines on this network I'm on right now. I've got a feeling that a wardriver could theoretically park his/her car across the street, airsnort his/her way into my wireless network, and pop open an explorer window and type \\192.168.1.2\c$ and breeze right into administrator shares. There are only 26 letters, it wouldn't take long to find my media

My personal position on this one is quite simple: You're liable for your actions, you're not liable for the system's or program's shortcomings.You click on a trojan installer, you're liable. You open your network, you're liable. You install a program that does what it should do according to its creator (i.e. share files), you're liable.

The system has a backdoor which was used to infect you, you're not. The system is remotely exploited, you're not. A program has a buffer overflow problem that allowed malware

I notice that the trolls are out in force on this one, so let me point out something. There is nothing in the Copyright Act that prohibits "sharing" of copyrighted material, or "making available". We do it all the time, every day, when we play music for a friend, have a party, have someone over to watch our DVD, etc.

The RIAA is relying on an alleged infringement of the "distribution" right.

But "distribution" under the Copyright Act means (1) disseminating (2) actual physical copies (3) to the public (4) through sale or other transfer of ownership or rental, lease, or lending. See brief [ilrweb.com] (pdf), esp. pages 3-4.

Software patents are really nothing of the sort -- they are process patents. You patent the process that the software implements. Then they usually claim a computer running software that implements this process -- that's the Machine part that is allowed.

I expect that much of the/. crown will see me as part of the problem, as I have several of these sort of patents granted with several more applied for.

Googling the Judge, he seems to be well liked. He gives lectures at Law Schools and he vacated a $35,000 judgement against a defendant in another RIAA case (Santangelo) so the case could continue. If anything he seems to be "for the little guy". His average rating is 9.2 out of 10. Here's one comment:

One the surface he appears to be a Judge who respects the public, has a passion for Law who doesn't automatically default to corporations. And, most importantly, he hasn't called the Internet a bunch of Tubes.

Reading all the posts here, it made me wonder something.If I could devise some system where I could connect to the kazaa/limewire/etc. network, and appear to have 10,000 songs available for downloading all of high-quality, but my client would not permit the files to be uploaded. What would happen?

I don't have the money to try this out, but I imagine that if somebody did, and was willing to bait the RIAA like this, that we could a) force a change in the way they run their "Investigations" and b) Potentially

There are a lot of bizarre statements about the "law" being made here by people who don't know anything about copyright law but are pretending they do. Don't be misled by them. Just read the statute, 17 USC 106(3) [cornell.edu].

Sorry, but I disagree with you. These cases are important to read about, and to discuss. Tens of thousands of people are being sued, and everybody on/. at least knows what a P2P system is. The most downloaded free open source application is a Bittorrent client. This is one of the biggest YRO issues of the moment, and worth following, and discussing, in detail. It's the reason we have DRM, and Vista, and Sony supplied rootkits, and it affects everybody!